Full Judgment
2. The learned Counsel Sri K.S. Ravishankar submits that there was no hearing granted in the matter. However, the appellants were directed to pre-deposit a sum of Rs. 1,25,615/- and they have pre-deposited only Rs. 35,000/- and filed a modification application giving very strong reasons for modifying the order impugned. The same was not considered and rejected. Hence, he submits that this case would also fall under Section 35A of the Act, where there was necessity to grant hearing even in cases where there is an application for modification of the order.
He further submits that the Hon'ble Madras High Court in the case of ITC Ltd. as reported in 2000 (1) ECL 97 have remanded all matters to the Commissioner (Appeals) on account of the appellants not having been given an opportunity of hearing. He submits that a similar order was also passed by the Tribunal on the same count in number of cases and therefore, he contends that the matter is required to be remanded to the Commissioner (Appeals).
3. Heard learned D.R. Sri M. Kunhi Kannan, who submits that the question of re-hearing on the modification application does not arise and the Commissioner was justified in rejecting the same. However, the Commissioner had considered the prayer before rejecting their appeal.
4. Perused the records. I notice that the Commissioner has not given hearing to the appellants at the time of passing interim order as well as the final order in tennis of Section 35A of the Act. The application for modification of stay order is also required to be heard as it is a continuation of stay application and orders passed thereon. In terms of principles of natural justice, all applications filed for modification are required to be heard and if a case is made out for waiver on balance, the same is ought to be considered. Hence, there is a clear violation of principles of natural justice in this matter. The Tribunal and the Madras High Court have been remanding the matters to the Commissioners (Appeals) to grant hearing before disposed of the stay matters. Therefore, the impugned order is set aside and matter remanded to the Commissioner (Appeals) to hear the application afresh after granting an opportunity to the appellants and to pass a considered order thereon.